Fair Termination of Employment in Kenya: Getting Procedure Right

Sections 43 and 45 of the Employment Act, 2007 require the employer to prove a valid reason for termination — typically misconduct, poor performance, redundancy or operational requirements. Bare assertions in a termination letter are insufficient.

Before terminating on grounds of misconduct or poor performance, the employer must explain the reason in a language the employee understands, in the presence of a fellow employee or shop-floor union representative chosen by the employee, and give the employee an opportunity to respond.

A documented show-cause letter, a properly minuted hearing and a reasoned decision letter are the minimum evidentiary record.

Section 40 imposes additional duties: at least one month's notice to the employee and the labour officer, selection on fair criteria (commonly seniority, skill and reliability), payment of accrued leave in cash, one month's notice pay and severance at not less than fifteen days' pay for each completed year of service.

Where termination is found unfair, the court may order reinstatement, re-engagement or compensation up to twelve months' gross salary, in addition to terminal dues. Punitive cost orders are not unusual where the conduct is egregious.